Compelling Interest, Forbidden Aim: The Antinomy of Grutter and Gratz

Abstract

This article explores the tension between the Grutter Court's capacious account of the value of racial diversity, on the one hand, and the Gratz Court's insistence on the constraining mechanism of individualized consideration, on the other. The article examines whether the promotion of diversity as a compelling interest can be reconciled with the requirement of individualized consideration under any coherent principle of equal treatment. The article concludes that the only way this can be done is to interpret the cases as rejecting the proposition that 'racial' diversity represents a compelling governmental interest and as implicitly adopting, instead, the idea that race is at most an information-bearing proxy for diversity conceived in terms of some race-blind modality.

Keywords: Grutter, Gratz, individualized consideration, equal treatment, diversity, affirmative action